Smt. Bichitra Bharali Kalita Vs. Dipak Chandra Kalita

Law Point:
Wife lodged false criminal proceeding and threatened to commit suicide. Leveling such serious allegations, in absence of any proof thereof, itself amounts to cruelty. Divorce granted on ground of cruelty.

JUDGEMENT

This appeal by the wife is directed against the judgment and decree dated 29.11.2011 (decree drawn on 15.12.2011), passed by the learned Principal Judge, Family Court, Kamrup at Guwahati in F.C.(Civil) Case No.66/2008, dissolving the marriage between the appellant and the respondent by passing a decree of divorce, on the ground of cruelty.
2. The respondent husband filed an application under Section 13(1) of the Hindu Marriage Act, 1955 (in short the Act), seeking a decree of divorce dissolving the marriage between the parties on the ground of cruelty, contending inter alia that after solemnization of their marriage on 07.05.1998, as per the Hindu rites, and the birth of their female child on 17.07.2000, the appellant/respondent started to behave with utmost cruelty with the petitioner and his family members by subjecting them to abusive languages, threatening to commit suicide with a view to separate the husband from his parents and accordingly under pressure though both the husband and the wife along with the minor child started living separately from 03.12.2003, the respondent husband was not allowed to live peacefully by the appellant wife, as he was tortured by her, both mentally and physically.

3. The appellant wife contested the proceeding by filing written statement denying the allegation leveled by the respondent husband and contending inter alia that it was the respondent husband who started torturing the appellant wife for dowry after 2/3 months of the marriage and completely avoided cohabitation as husband and wife and was driven her out from the matrimonial house on the day of Saraswati Puja in the year 2008. It has also been contended that the respondent husband in fact kept a concubine.

4. Based on the pleadings of the parties, the learned Principal Judge framed the following issues for determination:-

(i) Whether the respondent has treated the petitioner with cruelty?
(ii) Whether the petitioner is entitled to get a decree of divorce as prayed for?
(iii) To what relief/reliefs, the parties are entitled?
5. The respondent husband in support of his claim for a decree of divorce, apart from examining himself as PW-1 and his mother Smt. Bachanti Kalita as PW-3, has also examined Sri Satyen Kumar Baruah, a neighbourer and an independent person, as PW-2. Those witnesses were cross-examined by the appellant wife. 3(three) witnesses were also examined by the appellant wife, being the appellant herself as DW- 1 and two other persons, namely, Ganga Barman, sister of the appellant wife, as DW-2 and Sri Sabin Das as DW-3, in support of her pleaded case in the written statement.

6. The learned Principal Judge, upon appreciation of the evidence on record and having regard to the nature of evidence adduced, granted the decree of divorce dissolving the marriage between the parties by holding that the respondent husband could prove cruelty within the meaning of Section 13(1)(1a) of the Act. Hence the present appeal.

7. Referring to the deposition of the witnesses examined by the respondent husband as well as that of the appellant wife, it has been contended by the learned legal aid counsel that as the respondent husband could not discharge his burden to prove the cruelty within the meaning of Section 13(1)(1a) of the Act, no decree of divorce dissolving the marriage between the parties ought to have been passed by the learned Principal Judge. According to the learned counsel, though the respondent husband has alleged mental and physical torture by the appellant wife, both in respect of the husband as well as the in-laws, amounting to cruelty, no reliable evidence could be adduced by him so as to entitle to get a decree of divorce dissolving the marriage between the parties. Referring to the evidence adduced by the appellant wife, it has also been submitted that it was in fact the respondent husband, who tortured the appellant wife demanding more dowry, for non- payment of which she was eventually driven out from the matrimonial house and hence the respondent husband is not entitled to a decree of divorce dissolving the marriage.

8. None appears for the respondent to argue the case, though the names of the learned counsel engaged by him are reflected in the cause list.

9. We have considered the submissions advanced by the learned legal aid counsel for the appellant wife and also perused the evidence adduced by the parties in the aforesaid proceeding before the learned Principal Judge, Family Court.

10. As noticed above, the respondent husband filed an application under Section 13(1)(1a) of the Act seeking dissolution of the marriage between the parties on the ground of cruelty. The respondent husband, who examined himself as PW-1, in his deposition though has stated that he along with his brother and his parents were subjected to unnecessary harassment by the appellant wife by lodging a false criminal proceeding, resulting in detention of his brother in custody, who having not been able to bear the stigma of detention in custody eventually died at the very young age, the said fact, however, could not be proved by the respondent husband, as it has not been proved that the criminal case instituted by the appellant wife has ended in the acquittal of the husband or his brother or the in-laws. The respondent husband also could not prove, by adducing any evidence relating to the cause of death of his brother. Such allegation, therefore, cannot be the basis for grant of a decree of divorce dissolving the marriage between the parties. The respondent husband apart from such allegation has also narrated the various other incidents, amounting to both mental and physical cruelty, meted by the appellant wife to him as well as his parents and also threatening to commit suicide so as to put all the blame on the husband and the in-laws. Such deposition of PW-1 has also been supported by the PW-2, who is an independent witness, apart from the PW-3, the mother of the PW-1, the husband. Though those witnesses have been cross-examined by the appellant wife, they have, however, not been confronted with anything relating to such allegation of mental and physical torture. Such statement, therefore, go un- rebutted. The stand taken by the appellant wife in the written statement that it was in fact the respondent husband, who tortured her and driven her out from the matrimonial house also could not be proved, as none from her family except the DW-2, the sister, came forward to depose in that regard. DWs-2 and 3 also during cross- examination have stated that they do not have any personal knowledge about the allegation made by the DW-1, the wife. That apart, though a plea was set up in the written statement filed that the respondent husband has kept a concubine, the appellant wife has miserably failed to substantiate such serious allegation against the respondent husband. Levelling such serious allegation, in the absence of any proof thereof, itself amounts to cruelty, within the meaning of Section 13(1)(1a) of the Act.

11. In view of the aforesaid discussion, we do not find any merit in the appeal and hence the appeal stands dismissed. The parties, however, are directed to bear their own cost.